3d DCA Watch — Civil Law Day In The Bunker!

Boy did I get excited when I saw all the civil opinions released today!Then I read some of them.

Oh I kid the 3d — they’re not all bad.

Let’s take a look:

Hialeah Automotive v. Basulto:

This is actually a well-reasoned opinion by Judge Cope dealing with an arbitration clause in an auto purchase that would arguably defeat the remedial purposes of FDUTPA.Judge Cope goes through the procedural and substantive unconscionability test and summarizes the evidence, which consisted of an inadequate explanation of the clause (written in English) in Spanish to Spanish-speaking plaintiffs:

As the trial court order states, “It has long been recognized in this state that if one is induced not to read a contract−or, as here, not to obtain outside assistance in reading the contract−and he signs an entirely different paper from what the opposing party has represented that paper to be, the party so signing is entitled to be relieved of the obligations which he has unknowingly assumed.” Order at 7 (citing Pepple v. Rogers, 140 So. 205, 208 (Fla. 1932)). Alternatively, if arbitration was mentioned, it was not mentioned in an understandable way. Under either analysis, procedural unconscionability was established.

The Court also found the arbitration agreement to be substantively unconscionable and affirmed in part and reversed in part. Kudos for a logical and understandable opinion.

Weatherly v. Louis:

Judge Cope dissents in this personal injury appeal, which revolves around whether or not Judge Esquiroz correctly applied or even articulated the “manifest weight of the evidence” standard in denying a motion for new trial.Judge Lagoa in the majority opinion says she did and takes Judge Cope to task for elevating form over substance:

First, there is nothing in the record that remotely suggests that the trial court misunderstood the test applied to a motion for new trial. Not only is the trial judge an experienced jurist, but Weatherly’s own motion below articulated the standard he asked the trial court to apply. Weatherly merely disagrees with the outcome of the trial court’s ruling.Second, there are no magic words a trial court must recite in denying or granting a motion for a new trial. Indeed, such a requirement would elevate form over substance.

Finally, much of the dissent focuses on the fact that part of Louis’s SUV was still in the southbound lane of Krome when Weatherly hit the SUV. The dissent implies that this must be an indicia of some measure of negligence on Louis’s part. Respectfully, the dissent ignores the conflicting evidence from both Louis and Fitzsimmons.

Lastly, Judge Cope is a poopy-head! (I’m paraphrasing on that last part).Here’s how Judge Cope sees it:

In this argument the plaintiff acknowledged that the verdict may be supported by some evidence, but that it is against the manifest weight of the evidence. The plaintiff maintained that, given the respective positions of the vehicles, the idea that the defendant was completely free of negligence was against the manifest weight of the evidence.The trial court entertained argument and denied motion, stating in part:

I think there is evidence from which the jury could have found that either Mr. Louis was not negligent, that he didn’t breach his duty of care not to create an unreasonable risk of harm or that if that did happen and he was negligent that his negligence was not the proximate cause of the accident. On either one of those two bases, I guess the jury could have found that there should not be a verdict against Mr. Louis.

I know that it is tough, but I invite you to take it up on appeal. Okay?

Gotta love the last part, right?Judge Cope then gets to the heart of it:

Respectfully, the trial court’s oral pronouncement indicates that the court applied an incorrect legal standard. There is a clear distinction between (1) determining that the evidence is legally sufficient to support the verdict, and (2) determining that the verdict is contrary to the manifest weight of the evidence. See Brown v. Estate of Stuckey, 749 So. 2d 490, 495 (Fla. 1999).

The problem here is that the trial court’s oral pronouncement revealed the court proceeded only under concept (1), and determined that the verdict was supported by competent substantial evidence. The difficulty is that this part of the plaintiff’s amended motion was not based on concept (1), but was instead based on concept (2): an argument that the verdict was against the manifest weight of the evidence. See id.

I could go either way on this one. I know that’s tough.Why not you guys just take it up, ok?

Abu-Ghazaleh v. Chaul:

Did you know you can be a “party” to litigation if all you do is fund and control it:

This Court has previously stated that a“party” “is defined under Florida law as any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.” Visoly v. Security Pac. Credit Corp., 768 So. 2d 482, 489 (Fla. 3d DCA 2000).

Wow, you weren’t kidding about form and substance.

Understood, but don’t tell the Resplendently Robed Ones about this opinion.

BTW, congrats to former Chief Judge Gersten for his handsome portrait unveiling, which now hangs in the Courtroom of the 3d DCA alongside all the other former Chief Judges — I put up a few pictures I took of the event.

(Seriously, though, it is well-deserved and a great honor).